Another View: The menace in a threat

By Kevin Reed Special to The Washington Post

Published
12:12 pm EST, Tuesday, February 17, 2015

As a magistrate judge, I’ve presided over hundreds of protective order hearings in domestic abuse cases. And I can tell you that no abuser intends to truly threaten when he promises to kill his victim — at least not by the time he’s made it to court.

Victims come to court every day armed with heinous voice-mail messages, text messages or Facebook posts from abusers threatening them with bodily harm or worse. The identity of the speakers of these troubling statements is rarely in question. But when confronted, these abusers are always dismissive. According to them, such statements aren’t real threats at all. They are just a way to express anger about a particular situation — loose talk designed to let the target know how upset they feel. An overt statement to kill someone on sight is explained away as an atypical outburst that meant nothing — a position they believe is supported by the living-and-breathing victim’s presence in the courtroom.

Herein lies the problem facing the Supreme Court as it considers Elonis v. United States. In this case, for which oral arguments were heard in December, the court has been asked to turn subjective intent into a requirement of the federal threat statute. In other words, to win a conviction under such a standard, the government would have to prove that the defendant purposefully intended to threaten the victim.

Whatever the justices decide, the ruling will have far-reaching ramifications for domestic abuse cases. If the court rules that specific intent is required, not only will victims have to show that an abuser expressed intent to harm them, they’ll also have to prove that the abuser meant to threaten them — an extremely difficult, if not impossible, evidentiary burden to meet.

How do you prove something that exists only in the speaker’s mind? And even if the speaker didn’t intend for the expression of harm to be a threat, does that make it any less terrifying for the target?

In 2011, Anthony Elonis was convicted on four counts of violating the federal threat statute and was sentenced to 44 months in prison. Elonis often took to Facebook to write public posts about wishing his estranged wife were dead and wanting to kill her. He did this even though she had a protective order against him. He also posted threatening language directed toward an FBI agent and a kindergarten class.

At his trial, Elonis asserted that his Facebook posts were merely rap lyrics, albeit violent ones, and that they were therapeutic in nature. None of his Facebook posts were intended to be “true threats,” he said, and he didn’t think that people would perceive them as such because he often wrote that his posts were for entertainment purposes only. For him, they were a way to express his frustrations about his personal problems in an artistic fashion.

The jury didn’t buy it.

Now, in an appeal that has gone all the way to the highest court in the land, Elonis’s lawyers argue that the government had to prove that he intended for his statements to be threats. The government counters that Elonis’s subjective intent is irrelevant and that what matters is whether his audience perceived his statements as true threats.

During oral arguments, Justice Ruth Bader Ginsburg appeared to be sensitive to the evidentiary problems. “But how would the government prove whether this threat in the mind of the threatener was genuine?” she asked. “If (the defendant) is on notice that she’s in fear, that is all we’re asking for. That if he knows she is in fear, he doesn’t have a right to continue on,” Elonis’s lawyer told the court, perhaps forgetting that Elonis’s wife had a protective order against him at the time of the threats — a legal document saying to the world I am in fear of you.

But there is an even more compelling reason not to require subjective intent in threat cases: Victims must protect themselves regardless of intent. For example, in domestic abuse cases where there has been physical violence in the relationship, victims have no way of knowing whether statements to inflict harm are real or just transitory anger. They must consider their safety even if the abuser is just blowing off steam. For them, every threat is a true threat.

Domestic abusers routinely use threats to exert power and control over victims. Abusers are keenly aware that victims never really know if their threats are serious or not. Ultimately, their objective is to keep victims guessing about whether they are in real danger. The Supreme Court should refuse to protect this manipulative behavior.